Monday, March 06, 2017

Senators Should Ask Gorsuch "Do You Agree wth Judge Bork About Originalism?

By Eric Segall

Last week in Vox I published a lengthy essay arguing that originalism does not and should not drive judicial decisions. In previous work, I recounted how neither Justice Thomas nor Justice Scalia voted in an originalist manner. Recently, I had occasion to re-read Judge Bork's The Tempting of America. What I found surprised me because I was expecting to find a strong case for deferential judicial review based on judges only applying the original meaning of the Constitution. What I discovered, however, was simply another judge advocating a "living Constitution" approach, criticizing the privacy line of cases including Roe v, Wade, while approving other cases like Brown v. Board of Education and New York Times v. Sullivan with hardly an intelligible or consistent principle in sight. With the Gorsuch hearings around the corner, Senators should go back and focus on what Judge Bork wrote and ask the nominee if he agrees with what Bork labelled originalism but what was really living constitutionalism in disguise.

In a Chapter titled "Objections to Original Understanding," Bork quoted at length from a decision he had written in Ollman v. Evans, a libel case dealing with the difference between fact and opinion for libel law. Bork seemed to concede that the modern constitutional law of defamation would not have been anticipated by the framers but he was in no way troubled by the fact. A lengthy quotation is required to make this point as Judge Bork did:
Perhaps the framers did not envision libel actions as a major threat to [freedom of speech]. I may grant that for the point to be made. But, if over time, the libel action evolves so that it becomes a threat to the central meaning of the first amendment, why should not judges adapt their doctrines [to protect that meaning]....To say that such adjustments must be left to the legislature is to say that changes in circumstances must be permitted gradually to render constitutional guarantees meaningless. Judges must never hesitate to apply old values to new circumstances....  Brown v. Board of Education was more generally an example of the Court applying an old principle according to a new understanding of a social situation.... A Judge who refuses to see new threats to an established constitutional value ... fails in his constitutional duty. That duty, it is worth repeating, is to ensure that the powers and freedoms the founders specified are made more effective in today's altered world. The evolution of doctrine to accomplish that end contravenes no postulate of judicial restraint.
Judge Bork no doubt knew that this explanation for modern libel law specifically and constitutional law generally would open him up to the criticism that judges could justify the creation of new constitutional principles and doctrines such as the right to abortion. He argued, however. that the "argument quoted ... does no such thing." Bork distinguished between maintaining the "vigor of an existing principle" and the "creation of a new principle by ... sleight of hand." He then said that "if one cannot see where ... the adjustment of doctrine to protect an existing value ends and the creation of new values begins, then one should not aspire to be a judge, or for that matter, a law professor."

This argument, however, doesn't even pass the straight face test as an attempt to distinguish an originalist approach from a living constitutionalist approach. Judge Bork thought it was perfectly acceptable for judges to construct modern free speech and equal protection doctrines in ways that the framers would never have anticipated because the framers did care generally about freedom of speech and equality. But raising the level of generality of those provisions to such abstract levels could justify virtually any decision a judge would want to reach. In fact, this is exactly how some "New Originalists" have justified their judgments that bans on same-sex marriages violate the original meaning of the fourteenth amendment as do bans on abortion. For "equality" and "liberty" to be meaningful in the modern world, gays and lesbians must have equal rights to marriage and women must be able to possess reproductive freedom. These aren't the creation of new rights and principles but rather the maintenance of existing ones (the principles of equality and liberty).

As noted above, Bork justified Brown v. Board of Education as the application of an old value to a "new understanding of a social situation." But the Constitution and its Amendments contain a plethora of vague aspirations that are hardly self-defining. Examples include bans on "unreasonable" searches and seizures," "cruel and unusual punishments," and laws "abridging" the freedom of speech or "establishing" religion, not to mention the vague values of "equal protection of the laws" and "due process of law." If modern judges are allowed to ignore the specific expectations of the people who ratified those provisions, as the Brown Court did, in the service of "maintaining the vigor of an existing principle," then the original meaning of the Constitution is largely irrelevant to constitutional adjudication.

Judge Bork's theory of constitutional  interpretation makes a lot of sense. Of course judges need to enforce the Constitution's grand principles with an eye towards today's values including changed "social conditions." That is why gays and lesbians deserve full protection under the equal protection clause despite the undeniable fact that the original meaning of the clause did not include gays and lesbians (or even women). But the only thing "originalist" about this approach is a symbolic nod towards a vague and general principle adopted by the framers. That kind of nod simply does not decide hard cases and does not amount to taking original meaning seriously.

Judge Gorsuch claims to be an originalist, and there is little doubt that GOP Senators will throw that word around a lot throughout the hearings that begins on March 20. But wearing the label is not the same thing as employing it in real life cases. Senators should ask Gorsuch if he agrees with Bork's specific method of constitutional interpretation and how he would apply that method to specific constitutional controversies including the right to abortion. He should not be allowed to run and hide from that conversation but that, alas, is a topic for another day.